These Standard Terms and Conditions of Sale (the “Terms”) set forth the terms and conditions that govern purchases by any purchaser (the “Buyer”) of equipment and accessories (the “Products”) and related support services (the “Services”) from FiberPlex Technologies, LLC (“FiberPlex”). FiberPlex reserves the right, at any time and in its sole discretion, to update, revise or otherwise modify the Terms without notice. The Terms and any purchase orders and other agreements regarding the purchase of the Products and/or Services shall be referred to as the “Agreement.”
All agreements between the Buyer and FiberPlex to purchase the Products and/or Services shall be governed by the terms and conditions herein. The Buyer and FiberPlex agree that any modifications, changes, alterations of the terms and conditions herein must be in writing and signed by the Buyer and FiberPlex. FiberPlex hereby objects to any additional or different terms which may be contained in any of the Buyer’s purchase orders, acknowledgements or other documents or any communications received from the Buyer, and the Buyer and FiberPlex hereby agree that any such attempts shall be null and void and not deemed a part of the terms and conditions hereunder or any resulting order.
Any offer hereunder shall expire sixty (60) days following its date, unless the Products and/or Services are provided by FiberPlex and accepted by the Buyer. No order may be cancelled, modified or altered by the Buyer, without written consent of FiberPlex, which may be withheld in its sole discretion.
The prices for the Products and Services are based on FiberPlex’s current prices, in effect at the time of order, for the Products and Services. All current prices are subject to change by FiberPlex at any time without prior notice.
All payments for the Products and the Services are payable in only United States Dollars. The Buyer shall make payment as follows, unless FiberPlex requires payment in advance or upon different terms:
Subject to the limitations above, payments may be made only in cash or by wire transfer or by automated clearing house transfer or by certain credit cards.
Notwithstanding the foregoing, for all countries other than the United States of America and Canada, the Buyer shall make payment in full in advance in cash or by wire transfer of immediately available funds.
Notwithstanding the foregoing, at its option at any time, FiberPlex may require the Buyer to make payment by irrevocable letter of credit or by promissory note secured by purchase money security interest, upon terms and conditions satisfactory to FiberPlex in its sole discretion, and FiberPlex may defer shipment or cancel any order if the Buyer does not promptly provide such payment.
Charges will be assessed on past due accounts as follows: (i) a late charge at a rate equal to the lesser of one and one-half percent (1.5%) each month or the highest rate permitted by applicable law and (ii) reasonable collection costs and expenses, including attorneys’ fees and court costs. The Buyer’s failure to pay in accordance with the provisions of this Section 2 shall entitle FiberPlex, without prejudice to its rights to damages, to suspend or cancel any outstanding orders or require further assurance of payment from the Buyer.
The Buyer shall pay, in addition to the prices as set forth herein, any and all manufacturer’s tax, occupation tax, use tax, property tax, sales tax, excise tax, value-added tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever, except for taxes on FiberPlex’s income, imposed by any governmental authority on or measured by the transaction between FiberPlex and the Buyer. The Buyer shall indemnify, defend and hold harmless FiberPlex against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees, to the extent such claims arise out of any breach of this Section.
The Products shall be delivered, unless otherwise agreed to by the parties, freight on board place of shipment upon delivery to the carrier designated by FiberPlex at FiberPlex’s plant in Annapolis Junction, Maryland USA. The Buyer shall be responsible for all transportation expenses from FiberPlex’s plant or other loading point, such expenses shall be included on the applicable invoice for Products. Delivery of the Products to a carrier at FiberPlex’s plant or other loading point shall constitute delivery to the Buyer; and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by the Buyer.
FiberPlex reserves the right to make delivery in partial installments, unless otherwise expressly stipulated herein. All such partial installments will be separately delivered and paid for when due, without regard to subsequent deliveries. Any delay in delivery of any partial installment shall not relieve the Buyer of its obligation to accept remaining deliveries.
The Buyer acknowledges that all delivery dates are approximate. In no event shall FiberPlex be liable for any delays in delivery of the Products and/or Services.
The method and route of shipment shall be at the discretion of FiberPlex unless the Buyer shall specify otherwise; any such additional expense of the method or route of shipment specified by the Buyer shall also be borne entirely by the Buyer.
The Buyer must examine the Products when they are received by the Buyer. The Buyer shall make any and all claims for shortages, defects or other errors in delivery in writing to FiberPlex within thirty (30) days of receipt of shipment. Failure to give such notice shall constitute unqualified acceptance of all shipments made prior to FiberPlex’s receipt of the Buyer’s notice of such claims, and shall constitute a waiver of all such claims by the Buyer. Any and all claims for loss or damage to the Products in transit should be made directly to the carrier and not to FiberPlex.
To make any return of the Products to FiberPlex, the Buyer must (i) contact the reseller, distributor or other third party that was involved in the sale of the Products to the Buyer, if applicable, and (ii) obtain a return merchandise authorization number either through said reseller, distributor or other third party or by contacting FiberPlex directly prior to returning any Products to FiberPlex. If a defect in an applicable Product is suspected, the Buyer must also first contact a Technical Support Engineer (“TSE”) by either calling (301) 604-0100 or emailing firstname.lastname@example.org. The Buyer will work with the TSE to isolate the root cause of the failed state and follow the corrective actions or measures recommended by the TSE. If it is ultimately determined by the TSE that the applicable Product requires repair or FiberPlex determines that it will otherwise authorize the return of a Product, the Buyer will be issued a Return Materials Authorization number (“RMA”) and will properly package the Product for return. The RMA number must be written on the outside of the carton and addressed as follows:
FiberPlex Technologies, LLC
RMA: [insert provided RMA number here]
10840-412 Guilford Rd
Annapolis Junction, MD 20701
In the event that FiberPlex approves a return due to inaccurate product or quantity ordering by the Buyer after the above thirty (30) day acceptance period, then the party who placed the purchase order with FiberPlex for the applicable Product being returned shall pay a restocking fee equal to fifteen percent (15%) of the original purchase price of the Products being returned. Furthermore, in the event of such return of Products for inaccurate product or quantity ordering, FiberPlex shall inspect the returned Products to verify that such Products are in new condition. Upon satisfaction of such inspection, FiberPlex shall issue a credit for the original purchase price. In the event that the inspection is not satisfied, then FiberPlex may, at its discretion, either (i) reduce the credit by an amount determined by FiberPlex representing the reduced value for not being in a new condition, or (ii) refuse the return and ship the Products back to the purchasing party at the purchasing party’s expense.
FiberPlex shall work with the party who placed the purchase order with FiberPlex for the applicable Product with respect to any credits, charges or restocking fees in connection with any such returns. Any credits, charges or restocking fees applicable for such return of Products shall be applied to the account of such party who placed the purchase order with FiberPlex.
The Buyer shall be responsible for all costs of shipping any Products to FiberPlex or other location for warranty service or other authorized return of a Product. Any returns made on cash on delivery basis or without a return merchandise authorization number may be refused by FiberPlex, in its sole discretion. In the event that FiberPlex repairs or replaces any such defective Product, FiberPlex shall pay all reasonable costs and expenses for shipping to the Buyer such repaired or replacement Products. The risk of loss and damage regarding shipment of such repaired or replacement Products shall be borne by the Buyer.
In the event that FiberPlex replaces any defective Product purchased by the Buyer prior to its return by the Buyer, FiberPlex shall bill the Buyer for such replacement Product if such defective Product is not returned within thirty (30) days of receipt of the replacement Product. FiberPlex, at its sole discretion, shall only issue a refund if it is deemed necessary and only upon receipt of the defective Product from the Buyer.
Notwithstanding the passing of the risk of loss and damage from FiberPlex to the Buyer as described herein, FiberPlex shall retain title to the Products until it has received payment in full of all such amounts owed by the Buyer to FiberPlex due in connection with the Products delivered hereunder or any other account.
If the Products ordered by the Buyer are not shipped within fifteen (15) days after notification to the Buyer that the Products are ready for shipment for any reason beyond FiberPlex’ reasonable control, including without limitation, the Buyer’s failure to give shipping instructions, FiberPlex may store the ordered Products at the Buyer’s risk in any warehouse or yard or upon FiberPlex’s premises, and the Buyer shall immediately pay all handling, transportation and storage charges at the prevailing commercial rates upon submission of invoices by FiberPlex for such handling, transportation and storage charges.
FiberPlex reserves the right to make, at any time, changes in design and construction of the Products or in the scope of the Services as FiberPlex deems appropriate, without prior notice to the Buyer; provided that such changes do not have a material adverse affect on the Products and/or the Services. For example, FiberPlex may provide to the Buyer products and/or services that have the functionality and performance of the Products and/or the Services that the Buyer ordered, but changes in what is provided and what is described in a specification sheet, catalog or description of the Products and/or Services are possible. FiberPlex may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
FiberPlex warrants to the Buyer that the Products are free of defects in materials and workmanship under conditions of normal use for a period of one (1) year from the date of shipment to the Buyer. The date of shipment of the applicable Product is set forth on the packaging material in which the Product is shipped.
Notwithstanding the foregoing, with respect to software and firmware, FiberPlex warrants that the software and firmware of its Products that are designed by FiberPlex for use with specific units will execute its programming instructions when properly installed on such units.
FiberPlex warrants to the Buyer that the Services are free of defects in materials and workmanship under conditions of normal use for a period of thirty (30) days from date of service.
This limited warranty extends only to the original Buyer of the Product and the Service, as applicable.
Notwithstanding the foregoing, this limited warranty shall not be applicable to: (a) defects caused by accident or abuse of the Products, including without limitation, mishandling and dropping; (b) defects resulting from acts of God; (c) defects resulting from unauthorized modification of the Products, (d) defects resulting from unauthorized service of the Products, (e) defects resulting from operation outside the published FiberPlex specifications and instructions; (f) normal wear and tear, including without limitation, defects on the finish on any portion of the Product, such as surface scratches and weathering; and (g) units of the Products that have been licensed for beta, evaluation, testing or demonstration purposes.
Notwithstanding the foregoing, components and other brand equipment supplied but not manufactured by FiberPlex are covered under their respective manufacturer’s warranty in lieu of such limited warranty.
Failure to perform recommended routine maintenance, alterations or repairs made other than in accordance with FiberPlex’s directions, or removal or alteration of identification markings in any way will void this limited warranty.
The Products are not authorized for use as critical components in life support devices or systems without the express written approval of the FiberPlex’s President.
FiberPlex’s sole responsibility shall be, at its option, during the warranty period either: (i) to repair or replace any defective Products, at its facility or other location approved by it, during FiberPlex’s normal working hours, using new or refurbished replacement parts; (ii) exchange the defective Product with a product that is new or which has been manufactured from new or serviceable used parts and is at least functionally equivalent to the original Product or (iii) to refund to the Buyer all amounts paid, less a reasonable allowance for use, for such defective Products.
THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY FIBERPLEX, AND ITS SUPPLIERS WITH RESPECT TO PRODUCTS AND/OR SERVICES PROVIDED BY FIBERPLEX. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, FIBERPLEX AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR COMMON LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE. FIBERPLEX AND ITS SUPPLIERS DO NOT WARRANT THAT THE PRODUCTS WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION NOR THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL MEET ANY REQUIREMENTS OR NEEDS BUYER MAY HAVE. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF SOME WARRANTIES SO THEY MAY NOT APPLY. IF THIS EXCLUSION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES SHALL BE LIMITED IN DURATION TO A PERIOD OF NINETY (90) DAYS FROM THE DATE OF SHIPMENT, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.
EXCEPT FOR THE LIMITED WARRANTY OBLIGATIONS SET FORTH HEREIN, THE BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT FIBERPLEX AND ITS SUPPLIERS SHALL NOT BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF FIBERPLEX OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH LIABILITY IS BASED UPON CONTRACT, TORT, NEGLIGENCE OR OTHER LEGAL THEORY. EXCEPT FOR THE LIMITED WARRANTY OBLIGATIONS SET FORTH HEREIN, THE BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT FIBERPLEX’S AND ITS SUPPLIERS’ CUMULATIVE LIABILITY TO THE BUYER OR ANY THIRD PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID TO FIBERPLEX UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PRIOR TO ANY CLAIM.
The Buyer acknowledges that FiberPlex or its suppliers retain all right, title and interest in and to any and all copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights related to the Products and the Services (collectively, the “Product Technology”). The Buyer agrees that it has no right, title or interest in or to the Product Technology or any copies thereof. The Buyer may not remove or obscure any copyright notice, trademark notice or other notices contained within the Product Technology. FiberPlex’s name and logo, and all related product and service names, design marks and slogans are the trademarks, service marks or registered trademarks of FiberPlex and may not be used or modified in any manner without the prior written consent of FiberPlex.
For purposes of clarity, with respect to its software and firmware, FiberPlex hereby grants to the Buyer a non-exclusive, non-sublicenseable, non-transferable right and limited license to its software and firmware solely as included in the applicable Product.
Any other use of the Product Technology other than as expressly set forth herein without FiberPlex’s prior written consent, which may be withheld at FiberPlex’s sole and absolute discretion, is strictly prohibited and all implied licenses are disclaimed.
The Buyer represents and warrants to FiberPlex that: (i) he is at least 18 years old; (ii) in the event that the Buyer is an entity, that it has the full right, power and authority to enter into this Agreement; (iii) the performance by the Buyer of its obligations and duties hereunder, do not and will not violate any agreement to which the Buyer is a party or by which the Buyer is otherwise bound; and (iv) the Buyer’s use of the Product Technology complies in all respects with all applicable laws, statutes, regulations, ordinances and other rules.
This Agreement is expressly made subject to any applicable laws, regulations, orders, or other restrictions on the export of the technology or information about the Product Technology which may be imposed from time to time. The Buyer shall not export the Product Technology, information about the Product Technology or any product containing the Product Technology without complying with such laws, regulations, orders, or other restrictions. The Buyer agrees to indemnify and hold harmless FiberPlex against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees, to the extent such claims arise out of any breach of this Section.
THE PARTIES AGREE THAT THIS AGREEMENT AND THE RELATIONSHIP BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS. THE PARTIES AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT. THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND/OR STATE COURTS IN THE STATE OF MARYLAND FOR THE RESOLUTION OF ANY DISPUTES AMONGST THE PARTIES UNDER THIS AGREEMENT.
This Agreement constitutes the entire agreement between the Buyer and FiberPlex with respect to the subject matter herein, superseding any prior agreements between the Buyer and FiberPlex. The Buyer further acknowledges and agrees that the Buyer may not assign any part of this Agreement without FiberPlex’s prior written consent, which may be withheld at its sole discretion. This Agreement shall inure to the benefit of each party’s successors and assigns. FiberPlex shall not be deemed to be in breach of the Agreement and thereby liable to the Buyer or any third party for any delays in the performance of its obligations hereunder caused by fire, explosion, act of God, strikes, war, riot, government regulation, delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities or any other act or cause beyond the reasonable control of FiberPlex. The failure of FiberPlex to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect.
If the Buyer has any questions about this Agreement, or any question or problem regarding the Products, the Services and/or the Product Technology, the Buyer can contact FiberPlex by mail at FiberPlex Technologies, LLC, 10840-412 Guilford Rd., Annapolis Junction Maryland 20701, USA or by telephone at (301) 604-0100.